Introduction to Detailed Rules of International
Adjudicatory Jurisdiction in the Republic of Korea:
Proposed Amendments of the Private International Law Act
Kwang Hyun SUK (:fi J'tJJi)
Professor, School of Law, Seoul Nacional University

I. Introduction 1
The current Private International Law Act of Korea ("KPILA") includes three articles
on international jurisdiction (hereinafter "jurisdiction" refers to "international jurisdiction" unless otherwise required by the context) that were introduced in 2001. Art. 2 in
Ch. 1 (General Provisions) lays down general rules on jurisdiction. Arts. 27 and 28 set
forth special rules to protect consumers and employees. In June 2014, the Ministry of Justice of Korea ("KMOJ") established an expert committee ("Committee") in charge ofpreparing the draft amending KPILA, the term of which has expired on December 31,
2015. The task of the Committee was to prepare an official draft of the amended KPILA.
As of July 25, 2017, however, an official draft of the amended KPILA has not been pub-lished.
Since January of 2017 KMOJ had made efforts to complete the remaining works andactually has prepared an unofficial tentative draft ("Draft") of the amended KPILA. Although the Draft has not been officially released to the public, I am familiar with the contents thereof since I am providing assistance to KMOJ. When I made a presentation on
June 5, 2016 at the Conference of the Society of Private International Law of Japan heldin Nagoya, Japan, I explained the major contents of the then unofficial draft of theamended KPILA. In this article, I would like to briefly discuss the major contents of the
Draft without going into details thereo£
Unlike Japan, which added in 2012 detailed jurisdiction rules only on property law
matters in the Civil Procedure Act of Japan ("JCPA") and Civil Provisional Remedies Ace
of Japan, respectively, Korea will insert the jurisdiction rules on not only property law matters, but also family law and succession law matters in KPILA, in parallel with existing
rules on applicable law. Korea is different from both Japan and China in chat Korea plans

[Kwang Hyun SuK]Introduction of Detailed Rules of International Adjudicatory
Jurisdiction in Korea: Proposed Amendment of the Private
International Law Act3

co insert derailed jurisdiction rules in che private international law act rather than civil procedure ace, whereas both Japan and China have insened detailed (in the case· of Japan) or
brief (in the case of China) jurisdiction rules in their respective civil procedure acc.

II. Direction and the Regime of the Future Jurisdiction Rules
1. Current Regime: Transitory Codification in 2001

Art. 2 of KPILA states chat detailed jurisdiction rules should be developed by consulting, but without being bound by, the venue provisions of Korean law dealing with domestic territorial (or local) jurisdiction, such as Arts. 2 to 25, and Arcs. 29 co 31 of the Civil
Procedure Act of Korea ("KCPA"). However, it is necessary to cake into account the special characteristics of jurisdiction, as distinct from venue provisions. 2 Insertion of these articles was a transitory measure which implied chat detailed jurisdiction rules would follow
in the succeeding years. The reason the Korean legislators were then satisfied with the transitory measure was that the "Judgment Project" aimed at developing a comprehensive
worldwide convention dealing with jurisdiction and recognition and enforcement of foreign judgments in civil and commercial matters was underway under the auspices of the
HCCH. However, since the Judgment Project has failed, it is time for the Korean legislators to complete their plan co provide detailed jurisdiction rules in KPILA.
2. Direction of Amendment: Concretization and Individualization of Art. 2
The purpose of the amendment of KPILA is co insert detailed and refined jurisdiction
rules in KPILA. The abstract principles declared in Art. 2 should be replaced by more concrete rules. In preparing these rules, the Committee had considered the jurisdiction rulesof the 1999 Preliminary Draft ("1999 Draft") of the Hague Conference on Private International Law ("HCCH") and the rules set forth in the Brussels I Regulation, the Choiceof Court Convention of 2005 (in the case of property law matters), the Brussels II bis
Regulation, various Hague Conventions including the Children's Conventions and the
Adults Protection Convention of 2000, the EU Maintenance Regulations of 2008, the EU
Succession Regulations of 2012 and the then draft of the EU Matrimonial Property Regulations (in the case of family law matters).

3. Structure
Ch. 1 of KPILA will be amended as follows:
Current Provisions

Future StructureSec. 1. An. I (Purpose)

Ch. I

General provisions(§§I-10)Art. I (Purpose)
An. 2 (General Principles)
Arts. 3-IO
Articles on Governing Law

Ch. I

Sec. 2 International Jurisdiction
Art. 2 (General Principles), new articles to be added
here: general jurisdiction, jurisdictions based upon offlee or activity, presence of property, jurisdiction based
upon relationship, counter-claim, jurisdiction agreement, appearance, exclusive jurisdiction, /is pendens, farum non conveniens, exception for family and succession
matters, provisional measures, non-contentious matters

Sec. 3 Governing Law. Existing Articles

In new chapters from 2 to 10 (except for Ch. 3 & Ch. 4), new Sec. 1 on jurisdiction
will be added, and the existing articles on governing law will be moved to new Sec. 2.
Current Provisions

Future StructureSec. I New Articles on Int') Jurisdiction

Ch.2

Person (§§I I-I6)

Ch.2
Sec. 2 Existing Articles on Governing Law

Ch.3

Ch.4

Ch. 5

Juridical Act (§§I 7- I 8)

Ch.3

No change

Rights in Rem (§§19-23)

Ch.4

No change

Protection of Intellectual
Property (§24)

Ch. 5

Obligations (§§25-35)

Ch.6

Ch.6

Family (§§36-48)

Ch. 7

Ch. 7

Succession (§§49-50)

Ch.8

Ch.8

Bills of Exchange,
Promissory Notes andChecks (§§51-59)

Ch.9

Ch.9

Maritime Matters(§§60-62)

Ch.10

in chapters 5 co 10
Sec. I New Articles on Inc'l Jurisdiction
Sec. 2 Existing Articles on Governing Law

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III. General Provisions on International Jurisdiction (Ch. 1)
Here, I will discuss the jurisdiction rules to be inserted in Ch. 1.
1. Existing Art. 2: General Principles
Current Status
Arc. 2 reads as follows:( 1) The courts shall have international jurisdiction if the parties or the case in disputehas a substantial connection with the Republic of Korea. In determining whether or not
such substantial connection exists, the courts shall follow the reasonable principles inconformity with the ideas underlying the allocation of international jurisdiction.
(2) The courts shall determine whether or not they have international jurisdiction byreference to the provisions on jurisdiction of domestic laws, having full regard for the
special characteristics of international jurisdiction in light of the provisions of paragraph(1).

The idea underlying Arc. 2 is co require Korean judges to establish more detailed and refined jurisdiction rules after considering the special characteristics of jurisdiction, insteadof mechanically assuming that the 'rules on international jurisdiction' are identical to the'venue provisions' of KCPA. The venue provisions of KCPA could be used as a reference
for Korean courts in developing detailed and refined jurisdiction rules.

Draft
Arc. 2 in the Draft reads as follows:( 1) The courts shall [ ... same as Arc.2 ( 1) of the current KPILLA] i.e ., fairness to theparties. justice, promptness and economy of trial.
(2) Where there is no provision on international jurisdiction in this Act. other aces ortreaties, the courts shall [ ... same as Arc.2 ( 1) of the current KPILA].
2. General Jurisdiction
Current Status
KCPA provides chat an action is subject co che local jurisdiction of the court located atthe place where the defendant has his domicile (in the case of a natural person) or its
principal place of business (in the case of a legal person; KCPA, Arts. 2, 3 & S). It is generally recognized that this rule (actor sequitur forum rei) applies to jurisdiction.

Draft
An article setting forth the actor sequitur forum rei rule has been added in the Draft.
However, habitual residence has been selected as the point of contact for general jurisdiction for the following reasons: First, in the context of choice of applicable law, KPILA does
not use domicile as a point of contact. Second, habitual residence rather than domicile iswidely used as the basis of general jurisdiction in various Hague Conventions.
3-1.Jurisdiction based upon the Presence of Office or Branch
Current Status

An action against a person maintaining an office or a business office can be filed before
the court located in that area only if the action concerns the business affairs of such officeor business office (KCPA, Art. 12). It is generally recognized that this rule applies co jurisdiction. Art S (2) of KCPA also provides chat che general forum for a foreign corporation
shall be the place in Korea where it has an office or a business office. Korean courts used cohold that if a foreign corporation establishes an office or a business office in Korea, it will
be subject to Korean jurisdiction generally without regard to whether the particular causeof action is connected with the operation of the Korean office or business office, which canbe viewed as supporting the American concept of "doing business". However, it is not clear
whether the Supreme Court still maintains the position expressed in the past, because in a
recent case of 20 I 0, the Supreme Court apparently did not follow the approach of a judgment of 2000 in a comparable dispute.

Draft
An article along the lines of the following has been added in the Draft ( C£ Brussels I

bis (Arc. 7 (S)), the 1999 Draft (Art. 9) andJCPA (Arc. 3-3 (4)):
An action against a person having an office or establishment in Korea and relates cothe activities of chat office may be filed in Korea.

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3-2. Jurisdiction based upon the Activity of the Defendant
Current Status
There is no provision on chis head of jurisdiction.

Draft
An article along the lines of the below has been be inserted in the Draft:
An action against a defendant may be flied in Korea where the defendant has continuously and systematically carried on commercial or business activicy in, or towards, Korea; provided that the dispute relates to that commercial or business activicy.

In order to enhance legal cercaincy and claricy, the Committee agreed to insert such aprovision. Art. 3-3 (5) of JCPA is a good model of such jurisdiction. One could justify
such ground of jurisdiction, because foreign companies can conduct business in Korea
without establishing any office or establishment in Korea through internet and by othermeans. This could be described as so-called "transacting business" jurisdiction (i.e. special
jurisdiction) as opposed co "doing business" jurisdiction (i.e. general jurisdiction). It is aground of jurisdiction based on the "targeted activity criterion". In order to make clearthat a foreign company's mere operating of a website which Korean residents can accesscannot be regarded as carrying on business or commercial accivicy in Korea, the Committee has added in the Draft the phrase "systematic and continuous activities" which had
3been used in the U.S. Supreme Court Judgments in the past as a ground of general jurisdiction until it was recently abandoned by che judgment in Daimler AG v. Bauman.

4

4. Jurisdiction based upon the Presence of Property of the Defendant
Current Status
An action relating to property rights against a person without a domicile in Korea may
be brought before the court located in the area where the subject matter of the claim, thesubject matter for security or any attachable property of the defendant, is located (KCPA,

Art. 11). This appears co confer local jurisdiction merely on the grounds of the location of
any specified subject matter or property. Despite majority view criticizing such a positionas allowing exorbitant jurisdiction, the Supreme Court admitted in 1988 chat Art. 11 maybe applied to jurisdiction. However, considering a recent case of 2014, 5 the Supreme
Court now appears to depart from its previous position.

Draft
The Committee had no objection against the rule that the presence of the defendant's
property could constitute a ground of jurisdiction for an action relating to property rights
where the subject matter of the claim or the subject matter for security is located in Korea.
On the other hand, there was much discussion as to whether the presence of the defendant's property could constitute a ground of jurisdiction for an action relating to property
rights in general which has nothing to do with chat property. The conclusion was chat thepresence of property could constitute a ground of jurisdiction for an action relating toproperty if the property can be a subject of arrest or seizure. However, this rule does not
apply when (i) the case in dispute has no connection at all, or only a slight connection,with Korea or (ii) the value of the property is substantially small.

5-1. Jurisdiction based upon the Relationship between Claims
Current Status
KCPA contains a provision allowing an action involving several claims to be filed before
the court having local jurisdiction over one of the claims (§25 ( 1)). Some legal commentators cake the view chat the provision could be applicable co cross-border actions as
well. However, the Brussels I and the 1999 Draft do not contemplate such possibility at
all.

Draft
An article along the lines of the below has been inserted in the Draft:
Where two or more claims are made joindy in a single action and Korean courts haveinternational jurisdiction over one of chem, the action may be filed before Korean
courts only if the claims have a close connection between them.

The Committee decided to apply to family matters the jurisdiction rules based upon therelationship between claims but with some qualifications. Accordingly, Korean courts having jurisdiction over a principal (or anchor) claim such as divorce or adoption can have[Kwang Hyun SuK]Introduction of Detailed Rules of International Adjudicatory
Jurisdiction in Korea: Proposed Amendment of the Private
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9jurisdiction over an incidental claim such as a claim for appointment of custodian or aclaim for child support. However, Korean courts having jurisdiction only for an incidental
claim cannot have jurisdiction over a principal claim..

5-2. Jurisdiction based upon the Relationship between Parties
Current Status
KCPA contains a provision allowing an action by, or against, several persons co be filed
before che court having jurisdiction over one of the defendants (§25 (2)). Some legal
commentators cake che view that che provision could be applicable co cross-border actions
as well.

Draft
An article along the lines of the following has been inserted in the Draft:
A plaintiff filing an action against a defendant before a Korean court in which chat defendant is habitually resident may also flle an action before chat court against other defendants not habitually resident in Korea only if the claims against the defendant habituallyresident in Korea and the ocher defendants are so closely connected chat they should be
adjudicated together to avoid a serious risk of inconsistent judgments.

7. Jurisdiction Agreement (Choice of Court Agreement)
Current Status
In practice, the parties' agreement on jurisdiction plays a very important role. The effectiveness of the parties' agreement on jurisdiction in a cross-border action is generally accepted in Korea, although there is no express provision on point in KCPA. However, theSupreme Court held on September 9, 1997 that in order for a jurisdiction clause conferring exclusive jurisdiction upon a foreign court co be valid, (i) the case does not fall underthe exclusive jurisdiction of Korea, (ii) the agreed upon foreign court has valid jurisdiction
under its law, (iii) the case should have a reasonable relationship with the chosen foreign
court, and (iv) the jurisdiction agreement is not egregiously unreasonable or unfair. Although the condition (iii) has been criticized by legal commentators, the Supreme Court
maintains its position.

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OO~fM~~~~ 19 i5- (2017)

Draft
In relation to the requirement mentioned in (iii) above, the Committee agreed not tofollow the position of the Supreme Court. In addition, considering the entry into force ofthe "Convention on Choice of Court Agreements" on October 1, 2005 at the HCCH, theCommittee agreed to specify as below. Under the Draft a Korean court shall dismiss proceedings where there is an exclusive choice of court agreement in favor of a foreign court,
unless (i) the agreement is null and void under the law (including choice of law rules) ofche Seate of the chosen court; (ii) a party lacked the capacity co conclude the agreement;iii) giving effect to the agreement would be manifestly contrary to the public policy of Korea; or iv) the chosen court has decided not to hear the case or there is a situation in which
the agreement cannot properly be performed. However, as co the prorogation aspect of ajurisdiction agreement, the Draft is expected co merely state chat the parties may enter into
a jurisdiction agreement in respect of a defined legal relationship without expressly specifying that the chosen court shall have jurisdiction to decide a dispute to which the agreement applies.

In family matters, jurisdiction based upon parties' choice of court is in principle excluded; unless there is an express provision allowing parties' choice of courr agreement. For example, the parties are allowed to enter into a choice of court agreement in the case ofmaintenance matters (Ch. 7, Sec. 1). However, this exception is not applicable where thechosen court has no connection at all, or has only a slight connection, with the case or the
maintenance creditor is a minor or an adult ward.

9. Exclwive Jurisdiction
Current Status
KCPA does not contain any provisions on exclusive jurisdiction. A majority of commentators take the position chat Korean courts have exclusive jurisdiction in the following
cases: (i) in proceedings relating co the registration in public registers, if the register is
kept in Korea; (ii) in proceedings relating to the validity of the constitution, nullity or
dissolution of companies or the validity of the decisions of their organs, if the company
has been established under Korean law; (iii) in proceedings relating to rights in rem in immovable property, if the property is situated in Korea (the same applies to proceedings
based upon the right to use immovable property if such rights is registered in public registers and iv) in proceedings relating to the registration or validity of patents, trademarks, or[Kwang Hyun SuK]Introduction of Detailed Rules of International Adjudicatory
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ocher similar rights required co be registered, if the registration has been applied for or hastaken place in Korea. This is similar co the list of exclusive jurisdictions under the Brussels
I Regulations ( §22) .

Draft
An article dealing with exclusive jurisdiction has been added in Ch. l of the Draft. The
list of exclusive jurisdictions of Korean courts is as follows:(i) in proceedings relating to the registration in public registers, if the register is kept in
Korea;(ii) in proceedings relating co the validity of the constitution, nullity or dissolution of alegal person or an association or the validity of the decisions of its organs, if it has been
established under Korean law;(iii) in proceedings relating to rights in rem in immovable property, if the property issituated in Korea (the same applies to proceedings based upon the right to use immovable property if such rights is registered in public registers);(iv) in proceedings relating co the registration or validity of patents, trademarks, or ocher similar rights required to be registered, if the registration has been applied for or hastaken place in Korea;(v) in proceedings concerned with the enforcement of judgments, if the judgment is to
be enforced in Korea.
All to the proceedings mentioned in (i) and (iv) above, there are two exceptions. First,
exclusive jurisdiction rules shall not apply when those matters arise as incidental questions.
Second, exclusive jurisdiction rules shall not apply when the transfer or registration being
the subject matter of the proceedings should be performed by a contract between the parties. This is because in such case, the principal subject matters of the dispute are the interpretation of che contract, and the rights and obligations of the parties under the contract.
The purpose of the second exception is to reflect the position of the Supreme Court of
Korea.
All co the proceedings mentioned in (iii), there was much discussion as to whether Korean courts should have exclusive jurisdiction or not. Some members supported the position of the Brussels I and the 1999 Draft, whereas ocher members were in favor of the position ofJCPA according to which Korea would not have exclusive jurisdiction. KMOJ
decided to take the former position. An action relating to immovable property may befl.led in Korea if the immovable is located in Korea. An action relating to the ownership ofimmovables falls under this sub-paragraph.
With regard to (iv) above, there was a dispute whether proceedings where the Korean
plaintiff requires the Japanese defendant to transfer and register the transfer of the patents
registered in Japan pursuant to the contract between the parties is subject co the exclusive
jurisdiction of Japan or not. While the Supreme Court admitted chat che proceedings
where the subject matter is the validity or existence of patents generally fall under the exclusive jurisdiction of the country of registration (in that case in Japan), the Supreme
Court, on April 28, 2011,6 held chat the proceedings in question did not fall under the exclusive jurisdiction of Japan, because the principal subject matters of che dispute were theinterpretation of the contract, and the rights and obligations of the parties under the contracc.7 The judgment was welcomed by legal commentators in Korea.
IO. Lis Pendens

Current Status
There is no provision on chis issue in KPILA or KCPA. Although there is a split ofopinion, majority of lower courts appear to cake the view chat a Korean court before which
the second case is brought shall dismiss the case in cases where the foreign court first seisedof the case is expected to render a judgment that meets the requirement for recognition in
Korea.

Draft
Rules on Lis pendens along the lines of the below have been inserted in the Draft, which
resembles Art. 21 of the 1999 Draft.
When an action chat is the same as the case pending before a foreign court is filed before
a Korean court, the Korean court may, ex officio or upon application of a party, suspend
the proceedings if the foreign court is expected to render a judgment capable of being recognized in Korea, unless the Korean court has jurisdiction pursuant to an exclusive jurisdiction agreement or it is manifest chat the Korean court is more appropriate to resolve thedispute than the foreign court. Upon application of a party, the Korean court may proceedwith the case if the plaintiff in the foreign court has failed to cake the necessary steps or if
the foreign court has not rendered such a decision within a reasonable time. The Korean
court shall dismiss the case as soon as it is presented with a judgment rendered by the for-

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Introduction of Detailed Rules of International Adjudicatory
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eign court that satisfies the requirements for recognition under Korean law.
11. Forum non Conveniens: Special Circumstances Theory
Current Status
At present, there is a split of opinion among legal commentators as to whether or not
the doctrine offorum non conveniens, under which the Korean court may refuse to exercise
jurisdiction even if Korean courts have jurisdiction according co the standard established
by KPILA, is permitted. In the past, Korean judges could have some amount of flexibility
by resorting to the so-called "special circumstances theory" modeled on the Japanese court
precedents.

Draft
An article along the lines of che below permitting the forum non conveniens doctrine has
been be added in the Draft. The purpose is to give Korean judges some amount of discretion in concrete cases in exercising jurisdiction.
Article * (Declining of International Jurisdiction)(I) Even if Korean courts have international jurisdiction under this Act, in exceptional circumstances, a Korean court may, on application by the defendant made nolacer than at the time of the first defense on the merits, suspend its proceedings or dismiss the case if it is clearly inappropriate for the court co exercise jurisdiction and if acourt of another Stace has jurisdiction and is clearly more appropriate to resolve thedispute, unless the jurisdiction of the court seized is founded on a choice of court
agreement.
(2) In the case of para. I, before suspending the proceedings or dismissing the case,the court should give the plaintiff the opportunity to challenge the application of the
defendant.
(3) The parties may bring an immediate appeal against the decision of the court under para. I.
12. Exceptions in relation to Family Matters and Succession Matters
Current Status
There is no provision on this issue in KPILA or KCPA.

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OO~fk~~m~ 19-ij- (2017)

Draft
Several new arcicles that have been inserted in Ch. 1 of the Draft (such as choice ofcourt agreement and jurisdiction based upon appearance) will not be applied in the caseof family matters and succession matters, unless otherwise set forth in this Act. A typicalexample is the maintenance matters set forth in Ch. 7, Sec. l, where the parties are allowed to enter into a choice of court agreement within certain limit.
13. Provisional Measures
Current Status
There is no provision other than provisions on local jurisdiction in KCPA and the Korean Civil Enforcement Act.

Draft
An article along the lines of the below have been inserted in the Draft. (Cf. 1999 Draft,
Art. 13 andJCPA, Art. 11):A petition for an order of provisional relief may be made before a Korean court where
Korean courts have international jurisdiction over an action on the merits or where
the asset to be provisionally attached or seized or the object of the dispute is located in
Korea. In addition, a petition for an order of provisional relief may be made before a
Korean court where there is an urgent need, in which case the effect shall be limited
within Korea.
14. Non-contentious Matters
Are detailed jurisdiction rules for non-contentious matters available?
Current Status
There is no provision other than provisions on local jurisdiction in the Family Litigation
Act and the Act on Procedures of Non-contentious Matters.

Draft
KMOJ decided to take the below approach.

As to family matters, succession matters and personal matters, KPILA will set forth ju-

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risdiction rules for non-contentious matters (~}:ii'~$1!f) as well as contentious matters (Wfll'~$1!f). Articles in this category will provide that "Korean courts shall have jurisdiction

over certain matters". For example, jurisdiction rules for inter-country adoption that will

be included in Ch. 7 on family matters will be applicable to non-contentious matters aswell as contentious matters.

As to the other matters, KPILA will set forth jurisdiction rules for contentious matters.
Articles in this category will provide that ·~ action on certain issues may be filed before
Korean courts." As to non-contentious matters of this category, jurisdiction shall be determined pursuant to the general principles set forth in Art. 2 of KPILA unless otherwise set
forth in KPILA. For example, in determining whether or not it has international jurisdiction for non-contentious matters on registration of legal persons or trusts, a Korean
court shall refer to che provisions on jurisdiction of the Non-contentious Matters Procedure Act of Korea, having full regard for the special characteristics of international jurisdiction.
In addition, an article on non-contentious matters in Ch. I will expressly provide thatthe jurisdiction rules in Ch. I shall apply, mutatis mutandis, to non-contentious mattersunless it is against their nature. For example, the rules on jurisdiction agreement in Ch. I
shall apply, mutatis mutandis, co non-contentious matters unless it is against their nature.

Iv. Special Provisions on Jurisdiction: Articles to be inserted in Ch. 2
through 10 (except for Ch. 3 and 4) : Rules on Special Jurisdiction
Here I will discuss the rules on special jurisdiction in the order of the articles to be inserted in Ch. 2 through 10 (except for Ch. 3) of KPILA. In principle, the jurisdiction
rules in Ch. I and che rules on special jurisdiction of each chapter include exhausrive rules
on jurisdiction for the matters falling under each chapter. However, there are exceptions inmatters falling under Ch. 5 (lncellecrual Property) and Ch. 10 (Maritime Matters).

1. Person (Ch., Sec. 1)
Current Status
There is no provision other than the below venue provisions in the KCPA (Arts. 15 &16) similar to those of Art. 5 Item 8 of the JCPA concerning, inter alia, an action by acompany or other association against its member, or an action by a member against amember, each of which is based on his scams as a member.

DraftDeclaration of Disappearance: Korean courts shall have jurisdiction over matters relating to a declaration of disappearance of natural person in any of che following cases: (i)where che absentee is a Korean national, (ii) where che last habicual residence of che absentee was in Korea, or (iii) where che absentee has property in Korea or chere is a legal relationship governed by Korean law or ocher justifiable ground. Management of Property:
Korean courts shall have jurisdiction over matters relating to management of che absentee's
property if che absentee was last habitually resident in Korea or has property in Korea.
Special Jurisdiction: Special jurisdiction mirroring che first cacegory of che venue provisions of KCPA (Arts. 15 & 16) mentioned above will be inserted in KPILA (C£ JCPA,
Art. 3-3 (7)). On che ocher hand, there will be no provisions in che mirroring che secondand che chird categories of the venue provisions of KCPA.

2. Real Property (Ch. 4, Sec. 1)
Current Status
There is no provision ocher chan che venue provisions in KPCA (Art. 20) .

Draft
An action relating to rights in rem in immovable property may be flied in Korea if che
immovable is located in Korea. An accion relating co the ownership of immovables falls
under this sub-paragraph. The jurisdiction is exclusive. This provision will be inserted in
Ch. 1.

3. Intellectual Property Rights (Ch. 5, Sec. 1)
Current Status
There is no provision other than the venue provisions in KPCA (Art. 24).
The most problemacic disputes relating co incelleccual property are chose involving theregiscration or validity of patents or other similar rights requiring registration. It has been
generally thought chat Korean courts have exclusive jurisdiction in proceedings relating to
the registration or validity of patents or ocher similar rights, if the registration has takenplace in Korea. However, in a recent case of 2011 mentioned above, the Supreme Courc
distinguished (i) proceedings in which the subject matter is the validity or exiscence ofpatents on che one hand, and (ii) proceedings in which subjecc matters are the interpreca-

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tion and effects of the contractual obligations between the parties on the other, and heldthat only the first category falls under the exclusive jurisdiction of the country of registration.

Draft
The position of the Supreme Court will be maintained under the Draft. Three articles
along the lines of the below have been inserted in the Draft.
First, an action relating to validity and extinction of intellectual property rights createdby registration may be flled before Korean courts only when they are registered in Korea.
The foregoing shall not apply when those matters arise as incidental questions. The foregoing shall not apply when the transfer or registration being the subject matter of the proceedings should be performed by a contract between the parties. Second, an action relating
to contractual matters such as assignment or license of intellectual property rights may be
filed before Korean courts if such rights are protected, exploited or registered in Korea.
Third, an action relating to the infringement of intellectual property rights may be filed
before Korean courts if the infringement cook place in Korea or the infringement has been
directed towards Korea.

4. Obligations (Ch. 6, Sec. l)
A. Ordinary Contract

Current Status
KCPA provides chat an action relating to property rights may be brought before thecourt located in the place of abode or the place of performance (Art. 8) . In a case involving payment of contractual obligations, the Supreme Court held in 1972 chat Art. 8 could
be a basis of jurisdiction. Although Art. 8 on its face is not limited to the performance of acontractual obligation, the majority view maintains that the provision should not apply to
non-contractual obligations. It is not clear whether the Supreme Court still maintains the8former position expressed in 1972, because in a recent case of 2008 the Supreme Court

apparently did not follow the approach of the 1972 Judgment in a dispute based upon
contractual obligations.

Draft
An article along the lines of the following has been added in the Draft under the stronginfluence of Art. 6 of the 1999 Draft:l. An action relating to contracts may be flied before Korean courts if:
a. in matters relating to the supply of goods, the goods were supplied in Korea;
b. in matters relating to the provision of services, the services were provided in Korea; orc. in matters relating both co the supply of goods and the provisions of services,performance of the principal obligation cook place in Korea.
2. An action relating to contracts ocher chat chose listed above may be flied before Korean courts if the place where the obligation constituting the ground of the claim
has actually been performed in Korea or the place where the obligation constituting
the ground of the claim has been agreed to be performed in Korea.

This means that the place of performance of a contractual obligation can be a ground ofjurisdiction in a relatively limited situation. For example, in the absence of the parties'
agreement on the place of performance of obligation, the place where the obligation
should be performed under the law applicable to the contract cannot be a ground for jurisdiction. The reason for such limitation was that the factual situations of contracts were sodiverse that the jurisdiction based upon the place of performance of a contractual obligation cannot always be justified. In addition, if we base jurisdiction on the place of performance in question, two different States can have jurisdiction over che disputes arising fromone contract depending upon who flies an action as plaintiff. At first, che Committee preferred to insert only paragraph l. However, KMOJ decided to add paragraph 2 since che
scope of contracts covered by paragraph l appeared co be narrow in that it does not deal
with, for example, lease contracts, license agreements and other mixed contracts. Therefore, KMOJ has combined the approach of the 1999 Draft and the modified traditional
approach in Korea.
B. Protection of Socio-Economically Weaker Parties: Consumer Contracts
Current Status

In order to protect socio-economically weaker parties, KPILA sets forth special rules onjurisdiction in respect of passive consumer contracts and individual employment contracts(Arts. 27 & 28), which are modelled on the Brussels Convention (Arts. 13 through 15),

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the Brussels I Regulation (Arts. 15 ch rough 17) and on the 1999 Draft (Arts. 7 & 8) .
This is the so-called "protective jurisdiction".
In order for a consumer contract to be eligible for protection, the contract should be entered into by a consumer for a purpose that can be deemed to be outside his profession orbusiness activity, and it should be a so-called 'passive consumer contract", i.e., falling into
one of the categories mentioned in Art. 27.

Draft
The scope of consumers under Arc. 27 has been slightly expanded along the lines of theBrussels I and the Rome I.
C. Protection of Socio-Economically Weaker Parties: Employment Contract
Current Status
Arc. 28 secs forth special rules on employment contracts. Whereas the consumer's habitual residence is relevant in consumer contracts, the place where the employee habitually
performs his work is relevant in individual employment contracts.

Draft
There will be no amendment except for the structural change in order to split the provisions on applicable law and the provisions on jurisdiction.
D. Torts: no separate rules on Jurisdiction for special types of tort
Current Status

An action for tort may be filed before the court of the place where the tortious act occurred (KCPA, Art. 18). It is generally recognized that Art. 18 could apply in determining
the question of jurisdiction. Where the tonious act occurred in one place and the consequence of the injury occurred in another, each of them could be a ground for jurisdiction.
The places should be determined rationally from the viewpoint of jurisdiction and that, inthe case of product liability in particular, it should be taken into account whether the placeof acting or the place of injury was one of the areas chat the defendant was reasonably able
co foresee. The Supreme Court endorsed such view in the produce liability case of 1995.

9This judgment was apparently influenced by the idea of 'reasonable foreseeability' and'purposeful availment' appearing in the decisions of the Supreme Court of the U.S.

10

20

00~~~$¥tl~ 19 % (2017)

Draft
An article along che lines of che Brussels I bis (Art. 7 (2)), the 1999 Draft (Art. 10)
and JCPA (Art. 3-3 (8)) has been inserted in che Draft. The so-called 'mosaic rule', as inche Shevill case of 1995 of the ECJ, 11 is not contemplated. There will be no separate rules
on special types of tort, such as product liability, etc.

5. Family (Ch. 7, Sec. 1)
Current Status

In its leading case of 1975, 12 the Supreme Court held that (i) in principle, che domicile
of che defendant should be located in Korea in order for Korean courts to have jurisdiction, because the forum rei principle is also valid for family matters including divorce cases;
and that (ii) however, by way of exception, the Korean courts may have jurisdiction evenif che domicile of che defendant is located outside of Korea, where the refusal co entertain
the action could amount to a denial of justice. However, it is not clear whether the Supreme Court still maintains such position after che amendment of KPILA in 2001, because a subsequent judgment of the Supreme Court did not mention che foregoing jurisdiction rules. The position of che lower courts is split into two classes: (i) one whichmakes efforts to establish che jurisdiction rules on a case-by-case analysis and (ii) the ocher
one which adheres co the jurisdiction rules established by the Supreme Court in the case of
1975.

Draft
Articles dealing with jurisdiction on che following six categories of family matters havebeen be added in che Draft, respectively. In family matters jurisdiction based upon parties'
choice of court or appearance is in principle not allowed unless otherwise set forth in KPILA. In certain family matters, Korea has jurisdiction if both parties have Korean nationality. This is the case with marriage-related matters, whereas this is not che case with establishment of adoptive parent-child relationship or maintenance. I am not sure whether thejurisdiction rules based upon nationality in che Draft are consistent in diverse family matters.

A. Matters relating to Marriage
Korean courts have jurisdiction over che matters relating to marriage in any one of che

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following cases: (i) che applicant and one or all of che minor children are habitually resident in Korea, (ii) either of che spouses is habitually resident in Korea and the spouses
were last habitually resident in Korea, (iii) both spouses have Korean nationality or (iv) a
Korean applicant with a habitual residence in Korea files an action solely for the purposeof dissolving the marriage relationship. However, che Korean nationality of either of che
spouses (in particular che applicant) cannot be a ground of jurisdiction. In addition, Korean courts have jurisdiction if the respondent is habitually resident in Korea under Ch. 1of K.PILA. However, K.PILA will not permit forum actoris such as those in the Brussels II

bis on the ground that it is not fair to the respondent.
B. Matters relating to Establishment of parent-child relationship
Korean courts have jurisdiction over the matters relating to establishment of parentchild relationship and its dissolution if the child has his habitual residence in Korea or thechild and one of the parents have Korean nationality.

C. Matters relating to Adoptive parent-child relationship
Korean courts have jurisdiction over the matters relating to establishment of adoption if
a prospective adoptee or the prospective adoptive parent has his or her habitual residence
in Korea. Korean courts have jurisdiction over matters relating to confirmation of adoptive
parent-child relationship or its dissolution if the child has his habitual residence in Korea
or the child and one of che adoptive parents have Korean nationality. Although Korea hassigned the Adoption Convention in May 2013, Korea has not ratified the same.

D. Matters relating to Parental right (parental responsibility)
Korean courts have jurisdiction over che matters relating co parental rights, custody,
rights of visitation or guardianship of a minor child if che child is habitually resident in
Korea. The rationale behind chis rule is chat it enables the authorities to take necessary
measures promptly and lower the burden of the child in need, and the place is near evidence and assistance to children. That is also the position taken by the Abduction Convention of 1980 Korea has acceded to and the Child Protection Convention of 1996. Korean
courts also have jurisdiction over the matters relating co guardianship for a minor child if
the ward has his assets in Korea and there is a need to protect the ward.

22

OOll!MM~$ffl~ 19 ~ (2017)

E. Matters relating to Maintenance
It is not clear whether the courts for the place where the creditor is habicually resident
have jurisdiction. In order to protect weaker parties, the Committee agreed to insert an article expressly granting jurisdiction on the courts for the place where the creditor has his
habitual residence. Under Ch. 1 of the Draft Korean courts also have jurisdiction if the respondent is habitually resident in Korea. In addition, the parties may enter into a choice ofcourt agreement on maintenance matter under certain conditions.
F. Adult Guardianship
Korean courts have jurisdiction over the matters relating co guardianship for adults inany of the following cases: (i) where the ward is habitually resident in Korea; (ii) where
the ward is a Korean; or (iii) where the ward has his assets in Korea and there is a need toprotect the ward.

6. Succession (Ch. 8, Sec. 1)
Current Status
An action relating to a succession, a bequest (or a testamentary gift) or other acts taking effect upon death may be filed before the court located in the area where the generalforum of the deceased was located at the time when such succession commenced (KCPA,
Art. 22). In addition, an action relating to a succession claim and the liability of an estate,
which does not fall under Art. 22, may be flied before such court, if the whole or part ofthe estate is located in the jurisdiction area of the court under Art. 22. It is generally recognized that these rules apply to jurisdiction.
Draft
Under the Draft Korean courts shall have jurisdiction to rule on the succession as awhole, if the deceased had his habitual residence in Korea at the time of death. Korean
courts shall also have jurisdiction, if the deceased has his estate in Korea, provided, however, that the foregoing is not applicable when the value of the estate is significantly small.
The Committee agreed to set forth jurisdiction for matters relating to wills, which generally fall within the category of non-contentious matters. Korean courts shall have jurisdiction to rule on the will, if the deceased had his habitual residence in Korea at the timeof the will or the property, which is the subject of will, is located in Korea. Finally, consid-

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ering that succession is closely related to the property and KPILA permits party autonomy
within a cercain limit in the context of applicable law, the Committee agreed to permit achoice of court agreement between the parties concerned, except where the parties are aminor or an adult ward or the place chosen has no connection at all, or only a slight connection, with the case.

8. Maritime Matters (Ch. 10, Sec. 1)
Current Status
There is no provision other than the venue provision ofKCPA (Arts. 10, 13 & 14).

Draft
An action relating to limitation of liability of the shipowner, charterer, manager, operator or other users ( "shipowner and ochers") of the ship may be flied before Korean courts
if any one of the following places is located in Korea: (i) the place of registration of theship in respect of which the accident took place; (ii) habitual residence or principal placeof business of the shipowner and ochers; (iii) the place of accident; (iv) the first place atwhich the ship arrived after an accident; (v) the place where assets of che shipowner andochers have been arrested; or (vi) an action based upon limitation claim has been filed
against the shipowner and others.

An action against a shipowner and others relating co a ship or navigation may be filed
before Korean courts if the arrest of che ship has been effected in Korea (''forum arresti").
The venue provision, whereby an action based on a claim secured by maritime lien or any
ocher security interest in a ship may be filed in the place where the ship is located, will not
be transformed into a rule on jurisdiction. This means that Arc. 3-3 (6) of JCPA will not
be inserced in KPILA. The reason is chat mere presence without attachment or arrest is not
sufficient co secure the creditor's exercise of his right against the ship.

In addition, derailed jurisdiction rules on an action relating co general average, an action
relating to a collision of ships or any ocher accident at sea, an action relating to salvage
have been inserted in the Draft.
Although Korea is not a party to the "International Convention on Arrest of Ships" of
1999, the Committee accepted the proposal thacforum arresti be a ground for jurisdiction
for maritime matters, such as limitation of liability of the shipowner and others, generalsalvage, collision of ships and salvage. The place of arrest encompasses the place of arrest or

provisional arrest and che place where the ship could have been arrested, but bail or ocher
security has been given in lieu of the arrest or provisional arrest.

V. Concluding Remarks
I have explained che major contents of the jurisdiction rules co be inserted in che
amended KPILA. For che first time in che history of Korean private international law theCommittee and KMOJ have cried co prepare che comprehensive jurisdiction rules. Unfortunately, che Commiccee could not succeed in preparing the draft of the amended KPILA
even though the Commiccee could reach agreements on various tricky issues. Since Januaryof 2017 KMOJ has made efforts and has recently prepared che Draft which has not beenreleased co che public. I hope chat KMOJ will publish the final draft of che amended KPlLA as soon as possible. I am confident chat chose rules will definitely enhance the legal certainty on jurisdiction in Korea while leaving certain amount of flexibility to Korean courts
which they could exercise under the doctrine of Korean version of the doctrine of forum

non conveniens. The jurisdiction rules of KPILA would certainly serve as the solid basis forche future development.
1 This paper
is based upon the presentation I made on June 5, 2016 at the Conference of the Private International Law Association of Japan held in Nagoya, Japan and the presentation I made on
July 4, 2017 at the HCCH Asia Pacific Week 2017 held in Seoul. Given the limit on the numberof words, I have deleted explanations on jurisdiction on counter-claims, jurisdiction based on appearance, jurisdiction on promissory notes, bills of exchange and checks, crust and insurance contracts. I also deleted the comparison between the jurisdiction rules of Korea and Japan. After theauthor submitted this paper, the KMOJ has finally finished preparing a final draft of the amended
KPILA and made a prior legislative notice to the public on January 19, 2018. Detailed rules oninternational jurisdiction along the lines of the jurisdiction rules above (with some variations)have been inserted in the final draft. The author understands that the KMOJ plans to submit the
final draft with some minor changes to the National Assembly within the year 2018.
2 For more derails on the position of
the KPILA, refer to Kwang Hyun Suk, Recognition and Enforcement of Foreign Judgments in the Republic of Korea, Yearbook ofPrivate International Law,
Vol. 15 (2013/2014), pp. 423 et seq
3 Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437( 1952) and Helicopteros Nacionales deColombia, S.A. v. Hall 466 U.S. 408 ( 1984).
4 134 S. Ct. 746 (2014).
5 Judgment of April 10,2014, Docket No. 2012 Da 7571
6 Judgment of April 10, 2014, Docket No. 2012 Da 7571
7 Docket No. 2009 Da 19093.

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8 Judgment of May 29, 2008, Docket No. 2006 Da 71908, 71915.

9 Judgment of November 21, 1995, Docket No. 93Da 9607.
10 World-Wide Volkswagen Corp v Woodson,

444 U.S. 286 (1980) and Asahi Metal Industry Co v

Superior Court, 480 U.S. 102 (1987).
II C-68/93.
12 Judgment ofjuly 22,1975, Docket No. 74 Meu 22.